Okay, on to Part II of the sports betting oral arguments from the courtroom of Judge Michael Shipp on Thursday:

The other party in the effort to prevent sports betting in New Jersey – after U.S. Attorney Paul Fishman had expressed the federal government’s support for the constitutionality of the Professional and Amateur Sports Protection Act of 1992 – was represented by attorney Jeffrey Mishkin for the NCAA, NFL, NBA, NHL, and MLB:

Mishkin focused most directly on the “commandeering” question – that is, whether the federal law improperly forces most states into actions that should be the sovereignty of the states.

“The defining feature is that Congress has compelled the state legislature to take some action,” Mishkin said. “There can be no commandeering unless Congress has required a state to enact or carry out [some action]. The language of PASPA is crystal clear: It only prevents betting. It doesn’t compel New Jersey to do anything.”

A 2009 ruling on Delaware’s efforts to expand its sports betting beyond parlays – the Markell case – was called “very instructive” by Mishkin. But the defense pointed out that there doesn’t seem to have been a direct hit there, and Judge Shipp later seemed to agree.

As it happened, Mishkin kept saying “New Jersey” when he meant “Delaware” in describing that case, until Shipp finally corrected his inadvertent error.

Mishkin’s other point echoed Fishman: the “rational basis” angle.

Next up was uber-attorney Ted Olson for the state (that flat fee of $35,000 is looking like quite a bargain, by the way).

Olson began by discussing the high unemployment in New Jersey, the “flourishing black market in sports gambling” in the state, and the state’s desire to “be protected from the vice of organized crime.” He called PASPA “an unwelcome burden” on the state’s effort to regulate (and profit from) sports betting, and said that the state was being prevented from trying to solve the problems of the Atlantic City casino industry.

There was a concerted effort by Olson to try to drive a wedge between the federal government’s description of PASPA and the leagues’ version. He mocked the idea that PASPA doesn’t compel the state to prevent sports betting – the argument that New Jersey has to maintain a prohibition on sports betting but that it doesn’t have to enforce it.

Olson acknowledged that the issue of “commandeering” was unusual. “It does rarely happen – but this is one time where the line has been crossed,” he said.

Attorney Michael Griffinger, speaking for state Senate President Stephen Sweeney and Assembly Speaker Sheila Oliver, noted that the sports betting referendum earned a majority of support in all 21 state counties in 2011.

He described as sort of an 11th Commandment: “Thou shalt not authorize sports betting,” as he called it. Griffinger also questioned even the 1992 “one-year window” offered by Congress to New Jersey, because it said the state could only offer the gambling at state casinos, should the measure be approved. The concept was that even that limitation is an example of Congress overstepping its bounds.

The last attorney to speak was Ron Riccio, representing the New Jersey Thoroughbred Horseman’s Association. Riccio was the most animated of all, saying that the “individual liberty of the horsemen was at stake” and adding that Monmouth Park was “fighting an uphill battle to survive.” Riccio added that there was a “real danger: of the state’s entire equine industry collapsing if sports betting cannot be offered at that Oceanport track.

At one point, Riccio wondered if two Little League coaches with a wager of buying ice cream cones for the winners would run afoul of PASPA – an idea rejected later by Fishman.

Riccio went more directly than his colleagues at the “rational basis” standard, suggesting that the four-state exception for sports betting means that the court must look with a more jaundiced eye at the statute than that.

In rebuttal, Fishman insisted that every Commerce Clause case as boiled down to the “rational basis” standard, and this should be no exception. He added that “as a taxpayer in New Jersey,” he found Riccio’s argument for saving the horse racing industry while raising state tax revenues “in some ways attractive.”

But he said that Congress had decided otherwise, and that’s that.

Mishkin’s last point was that PASPA simply prevents states from offering legal gambling. There was mention later in the coutroom of an idea that states giving their imprimatur for betting would also expand illegal gambling, since the state was okay with some form of it.

Shipp then wrapped up the 3-hour marathon by saying that he couldn’t rule immediately because “the reality is that these are weighty issues. They are not easily and swiftly decided.” He also noted his awareness of the likelihood that “this is not the last stop” – presumably meaning that the loser is sure to appeal no matter how he rules.

Fishman had a brief give-and-take with reporters afterwards, describing the session as “spirited and interesting.”